In this case, Macy's has failed to meet its burden. Although it is true that this action has many connections to New Jersey -- the plaintiff is a resident of New Jersey, the accident occurred in New Jersey, the third-party defendant has its principal place of business in New Jersey, the plaintiff sought medical treatment in New Jersey, the employee who prepared the accident report resides in New Jersey, and New Jersey law applies -- the Court finds that the action should remain in the Southern District of New York.

First, Macy's has failed to show how any witnesses will be inconvenienced by having this case tried in the Southern District of New York. Although Macy's seeks to transfer this action based upon the convenience of witnesses, it has failed to provide affidavits indicating what the testimony of any witnesses will be, and why it would be inconvenient for any witness if the case remained in the Southern District of New York. See Factors, Etc., Inc. v. Pro Arts, 579 F.2d at 218 (if the defendant relies on the convenience of witnesses to justify transfer, "the movant must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover"); Leasing Serv. Corp. v. Patterson Enterprises, Ltd., 633 F. Supp. 282, 284 (S.D.N.Y. 1986) (same). By contrast, plaintiff has submitted the affidavit of a New York witness, Dr. Melvin Jahss, who would be inconvenienced by a transfer to the District of New Jersey. See Affidavit of Dr. Melvin Jahss, sworn to on January 2, 1992, attached as Exhibit "B" to Affidavit of Joel Savit.

Second, the record indicates that any witnesses which Macy's intends to call fall within this Court's subpoena power. Pursuant to Federal Rule of Civil Procedure 45(e), the Court has the power to compel the presence of any necessary witness within one hundred miles of the Foley Square courthouse. Because of this one hundred mile "bulge," even if there were any unwilling witnesses, Macy's could subpoena these persons, and their attendance would be mandatory in this district. Additionally, the Court's subpoena power extends to any of the New Jersey health facilities where plaintiff received treatment, each of which are within one hundred miles of this courthouse.

Finally, the fact that New Jersey law applies and that the accident occurred in New Jersey are not more significant than convenience to parties and witnesses. Noreiga v. Lever Bros. Co., 671 F. Supp. 991, 996 (S.D.N.Y. 1987) (citing Vassallo v. Niedermeyer, 495 F. Supp. 757, 759 (S.D.N.Y. 1980) (that the law of another jurisdiction governs the outcome of the case is a factor accorded little weight on a motion to transfer especially when no complex issues of foreign law are at stake)). As the Court stated in Noreiga, "while the location of the accident is significant in the abstract, defendants have not proven, as is their burden, that the fact of the accident occurring in New Jersey makes it inconvenient to try the case in New York." Id. at 997.

Thus, the Court finds that Macy's has not satisfied its burden of establishing that transfer to the District of New Jersey would be more convenient to the parties or witnesses. Accordingly, its motion to transfer venue to the District of New Jersey is denied.

Conclusion

For the reasons stated above, Macy's motion to transfer venue to the District of New Jersey, pursuant to 28 U.S.C. § 1404(a), is denied. The action will continue in this Court.

SO ORDERED.

SHIRLEY WOHL KRAM

UNITED STATES DISTRICT JUDGE

Dated: New York, New York

May 19, 1992

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